Bombay High Court
Shri. Dattu Shankar Dhumal vs M/S. Shipping Services And Anr on 1 April, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:15330
Kishor WP 10073 of 2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10073 OF 2019
Dattu Shankar Dhumal ... Petitioner
Versus
M/s. Shipping Services & Ors. ... Respondents
_____________________________________________________________
Mr. J. P. Cama, senior advocate a/w. Mr. Swapnil S. Dhage, for
Petitioner.
Ms. Anjali Purav Yajurvedi, for Respondent.
_____________________________________________________________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 14 MARCH 2024.
PRONOUNCED ON : 01 APRIL 2024.
JUDGMENT:
1. Rule. Rule made returnable forthwith. With the consent of
the learned counsel for parties, Petition is taken up for hearing and
disposal.
2. Petitioner has filed this petition challenging Judgment and
Order dated 04 July 2018 passed by the First Labour Court at Mumbai
in Complaint (ULP) No.203 of 2016 as well as Judgment and Order
dated 30 April 2019 passed by the Industrial Court, Mumbai in
Revision Application (ULP) No.98 of 2018. The Labour Court has
dismissed complaint filed by the Petitioner challenging his termination
and his Revision Application is dismissed by the Industrial Court.
Petitioner is before this Court challenging the concurrent findings
recorded by the Labour Court and Industrial Court.
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3. Briefly stated, facts of the case are that Petitioner claims to
have initially joined M/s. United Carriers on the post of 'Clerk' on 01
June 1992. According to him, M/s. United Carriers was being run by
same management as that of Respondent No.1-M/s. Shipping Services.
He claims that in the year 2006, the operations of M/s. United Carriers
were closed and Petitioner was transferred in the services of the first
Respondent - M/s. Shipping Services where he started functioning as
Head Clerk. That M/s. Shipping Services is engaged in the business of
transportation. Respondent No.2 is the proprietor of Respondent No.1.
That there is another sister concern of same management M/s. Damani
Shipping Pvt. Ltd. and the employees of M/s. Shipping Services were
often deployed to carry out work of M/s. Damani Shipping Pvt. Ltd.,
which is a Custom House Agent.
4. Petitioner further pleads that Respondent No.1 used to pay
bonus to its employees until the year 2013. Suddenly it stopped paying
any bonus to the employees. That Respondent No.1 also stopped
granting medical and traveling allowances to the employees. Petitioner
joined Union named Maharashtra Navnirman Kamgar Sena in May
2015 after which, according to Petitioner, the management started
harassing him. That all work of the Petitioner was taken away and
handed over to another employee and Petitioner was made to sit idle
without any work. That his salary was not paid for the month of July
2016 and when he demanded the same, the management insisted on he
rendering resignation from membership of the Union. That the Union
filed complaint of unfair labour practice bearing No.289 of 2016 before
Industrial Court on 6 September 2016. That through the reply filed to
the said compliant by Respondents, he came to know that his services
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were terminated on 7 July 2016. The Union withdrew the complaint
with liberty to file fresh complaint to challenge the termination.
5. In the above background Petitioner filed Complaint (ULP)
No.203 of 2016 challenging his termination by Order dated 7 July 2016.
The Labour Court granted interim relief directing the first Respondent
to allow Petitioner to report on duty during pendency of the
Complaint. His monthly wages were also directed to be deposited in the
Labour Court. Respondents moved application for stay of Order dated
7 February 2017, which was stayed by the Labour Court on condition of
allowing Petitioner to report on duty. The Interim Order was
challenged by the Respondents before the Industrial Court by filing
Revision Application No.16 of 2017, which was allowed by Order dated
02 March 2017 whereby the Industrial Court directed Respondent No.1
to deposit amount of Rs.3,07,904/- in the Labour Court with liberty to
the Petitioner to withdraw the said amount. The amount was not
directed to be considered as legal dues against the order of termination.
Respondent No.1 however was directed to deposit Rs.21,000/- per
month under the head 'wages' with effect from July 2016 onwards
during pendency of Complaint (ULP) No.203 of 2016. The Revision
Application was accordingly disposed of. Petitioner withdrew the
amount of Rs.3,07,904/- from Labour Court.
6. Petitioner led evidence of himself as well as two other
witnesses Mr. Santosh Vithoba Kode and Shri. Satyendra Prakash
Ramnaresh Tiwari. Respondents examined Shri. Ashwin Damani as
their witness.
7. After considering pleadings and evidence on record, the
Labour Court delivered Judgment and Order dated 04 July 2018
dismissing the Petitioner's complaint. Petitioner filed Revision
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Application (ULP) No.98 of 2018 before the Industrial Court, which
has been dismissed by Judgment and Order dated 30 April 2019.
Aggrieved by the decisions of Labour Court and the Industrial Court,
Petitioner has filed the present petition.
8. Mr. Cama, the learned senior advocate appearing for
Petitioner would submit that Petitioner's termination is in violation of
provisions of Section 25F of the Industrial Disputes Act, 1947 (I. D.
Act). That no termination letter was served on Petitioner, nor he was
paid any retrenchment compensation. That there is no documentary
evidence on record to prove that termination letter was sent to
Petitioner by post. That Respondents' stand is that the termination
letter was acknowledged by union, which clearly shows its non-service
on Petitioner. There is no evidence of cheque or compensation being
handed over to the Petitioner. The compensation was ultimately
deposited in the Labour Court and withdrawn by the Petitioner.
9. Under Section 25-F(c), service of notice on appropriate
government is a sine qua non for effecting retrenchment of workman.
Admittedly, no notice under Section 25-F(c) was sent to the
government. Mr. Cama would further submit that the termination
order is in contravention of Section 25-G as the principle of 'last come,
first go' is admittedly not followed. Relying on the information
procured from Employees Provident Fund Organization under Right to
Information Act, Mr. Cama would submit that several employees are
appointed after termination of the Petitioner. That the defence of the
Respondent about non availability of work for Petitioner is false. That
Petitioner was working as clerk and therefore all clerks appointed by
the management would fall in one category and it is not permissible to
draw distinction between different categories of clerks depending on
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works assigned to them. That it has come in evidence that all co-
workers of the Petitioner were also doing same work. That thus
employment of new workers after termination of Petitioner is proved in
evidence. That Respondents admittedly did not maintain seniority list
as required under Rule 81 of the Industrial Disputes (Maharashtra)
Rules, 1957. That Respondent did not produce any documentary
evidence of maintenance of such seniority list. Mr. Cama would thus
submit that the termination of Petitioner was unlawful was fully
proved to be unlawful before the Labour Court. It was also proved that
he was not gainfully employed after the termination. Therefore,
reinstatement with full backwages ought to have been awarded to
Petitioner.
10. Ms. Purav, the learned counsel appearing for Respondents
would oppose the petition. She would submit that services of Petitioner
were required to be terminated as the work, which he used to perform,
came to an end. That Petitioner used to send the Export Promotion
(EP) copies to the customers of Respondents and that as per the
circular issued by the Customs Department on 23 November 2016, the
requirement of sending copies of export promotion to customers was
discontinued. She would submit that Petitioner was idle without doing
any work for over two years during 2014 to 2016. That therefore his
services were terminated by paying him retrenchment compensation
plus one month's notice pay totaling Rs.3,07,904/-. That termination
letter alongwith cheque was attempted to be handed over to Petitioner,
who read contents of letter and refused to accept both letter as well as
cheque. That Petitioner has not provided his residential address to the
Respondent-Management. However, another employee residing in the
same building as that of Petitioner intimated Petitioner's address on
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which the termination letter was sent by ordinary post. Ms. Purav
would invite my attention to the Union's letter dated 14 July 2016,
which according to her, clearly shows acquisition of knowledge of his
termination. That initially Complaint on behalf of Petitioner's behalf
was filed by the Union before the Industrial Court on 02 September
2016 which was later withdrawn and Petitioner filed fresh complaint
under Item-1 (a), (b), (d) and (f) of Schedule IV of MRTU & PULP Act
before Labour Court.
11. So far as the reliance of the Petitioner on list of workers
provided by Employees Provident Fund Organization is concerned, Ms.
Purav would submit that list does not mention the department where
the concerned workers were employed. That Section 25-G of the I.D.
Act refers to 'the particular category of workman'. That therefore it
was necessary for Petitioner to demonstrate that clerk performing same
work was employed by the management after his termination. Ms.
Purav would submit that there are concurrent findings recorded by
Labour and Industrial Court and therefore interference by this Court in
exercise of writ jurisdiction in such concurrent findings is not
warranted.
12. Rival contentions of the parties now fall for my
consideration.
13. Petitioner's services are shown to have been terminated by
letter dated 07 July 2016. There is a handwritten endorsement at the
foot of the said letter dated 07 July 2016 that the Petitioner was called
to the chamber of the person making endorsement at 5:00 p.m. on 07
July 2016 and the letter of termination alongwith cheque of
Rs.3,07,904/- was handed over to him. That he read contents of the
termination letter and refused to accept the letter or the cheque.
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Petitioner denies issuance or any attempt to serve termination letter on
him on 7 July 2016. According to him, Respondent-Company did not
make any attempt to serve termination letter on him at any point of
time. If the contention of the Petitioner is that the letter dated 07 July
2016 was never served on him by any means, he has not explained as to
whether he reported for duty on 08 July 2016. There is no
correspondence on record by the Petitioner immediately after 07 July
2016. Perusal of the complaint filed by the Petitioner before Labour
Court under Section 28 of the MRTU & PULP Act would indicate that
he has made following pleadings in respect of happening of the events
during the months of July and August 2016.
(d) The Complainant states that he become of the Union
maharashtra Navnirman Kamgar Sena in the month of May, 2015,
which was noticed by the management in the month of January,
2016. The Complainant states that as they came to know that
Complainant has became the member of the Union, they started to
harass him and his routine work was being taken away and handed
over to Mr. Palav, Dhawal and mr. Mourya. The Complainant
states that just to harass him he was being forced to sit idle
without any work. The Complainant states that after demand
made by him he has been the salary till July, 2016. the
Complainant states that with prior intimation to the big sister
concern M/s. Damani Shipping Pvt. Ltd. as its operates from same
address the office bearers of the Complainant's Union meet the
management on 27.07.2016 and 09.08.2016 and asked the
explanation from the management. about the harassment to the
Complainant. In the said meeting the office bearers requested the
management of the Respondent No.1 Establishment to allot the
work to the Complainant and also pay his monthly wages. The
Complainant states that though he regularly reporting on duty he
was not paid the wages for the month of July, 2016. The
Complainant states that on 7th August, 2016 when he approached
the management with a request to pay the wages for the month of
July, 2016 he was told by Respondent No.2 that he has to resign
from the membership of the Union and if he fails to do so
management will not pay his monthly wages hereinafter and will
terminate his services. The Complainant states that the office
bearers of the Union approached the Respondents on 17 th August,
2016 and requested the management to pay the wages of the
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Complainant and therefore the management paid his wages on 20 th
August, 2016 for the month of July, 2016.
14. Petitioner thus claims that he alongwith office bearers of
the Union various Respondent-Management on various days in July
and August 2016 about the alleged harassment and non-payment of
wages to Petitioner. He further pleaded in his complaint that there was
apprehension of his termination and therefore the Union filed complaint
No.289 of 2016 before the Industrial Court, Mumbai on 2 September
2016 and in written statement filed by the Respondent-Management on
30 September 2016. They took a stand that Petitioner's services were
already terminated on 07 July 2016. The pleading in paragraph No.3(d)
of the complaint are as under:
(d) The Complainant states that since there was apprehension
of termination of his services and the management was not
interested to pay his monthly wages his Union, Maharashtra
Navnirman Kamgar Sena filed a Complaint of Unfair Labour
Practice No. 286 of 2016 before Hon'ble Industrial Court, Mumbai
on 06.09.2016. The Complainant states that since there was dire
urgency in the matter the Union moved the matter before Hon'ble
Industrial Court, where the Respondents filed their Written
Statement and Reply to Interim Relief Application on 30.09.2016
and stated that they have terminated the services of Complainant
on the 7th July, 2016 vide letter dt. 07.07.2016 and therefore the
Complainant Union is not entitled for any relief.
15. Thus, the plea raised by the Petitioner before the Labour
Court was that he was unaware about his termination till 30 September
2016. This stand taken by Petitioner is belied by Union's letter dated
14 July 2016. By that letter addressed by the Union to the Respondent-
Management, Union stated as under:
Sir, you are informed by this letter that Shri. Dattu Shankar
Dhumal Ex-employee in your establishment for last 29 years.
Said Shri. Dhumal has been unlawfully terminated by the
Management without assigning any written reason. This is
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against the provisions of Labour Laws and injustice to the
workman. The Management is violating Labour laws and has
indulging in unfair labour practices.
You may take cognizance of the letter and reinstate Shri. Dattu
Ashok Dhumal as early as possible, failing which legal action
would initiated against for which your Management would be
fully responsible.
Copies of letter dated 13 July 2016 were addressed to Labour Court
Commissioner and Senior Police Inspector, Mata Ramabai Ambedkar
Road Police Station, Fort, Mumbai.
16. Thus, the letter dated 14 July 2016 addressed by Union
leaves no manner of doubt that the Union had acquired knowledge
about Petitioner's termination on 14 July 2016. Thus, Petitioner took a
false plea in his complaint that he acquired knowledge about his
termination only when Respondent-Management filed written
statement in Complaint No.289 of 2016 on 30 September 2016. The
Petitioner had fully acquired knowledge about his termination and had
approached the Union about the same this is why the Union addressed
letter to Respondent-Management within 7 days after Petitioner's
termination. Since he took a false plea in his Complaint about lack of
knowledge about his termination till 30 September 2016, his plea of non
service of termination letter dated 07 July 2016 cannot be accepted.
17. Also of relevance is the conduct of the Union in filing
Complaint No.289 of 2016 before Industrial Court, which was filed on
02 September 2016 seeking following prayers :
(a) That the Hon'ble Court be pleased to declare that the
Respondents have indulged in unfair labour practices under Item
1(a) of Schedule II and Item 9 and 10 of Schedule IV of MRTU &
PULP ACT 1971.
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(b) That direct the Respondents or either of them to cease and
desist from engaging in unfair labour practice under Item 1(a) of
Schedule II and item 9 and 10 of Schedule IV of MRTU & PULP
ACT 1971.
(c) That the Hon'ble Court be pleased to direct the
Respondents to pay the medical and traveling allowance to the
member of Complainant Union and also pay the arrears of this
medical and traveling allowance since the date of entitlement.
(d) That the Hon'ble Court be pleased to direct the
Respondents to pay the bonus to its member employee's alongwith
the arrears from the year ending March, 2013.
(e) Any other relief being fit and proper towards the ends of
justice in the nature and circumstances of the case.
18. When Union had already acquired knowledge about the
Petitioner's termination and had addressed letter dated 14 July 2016 to
Respondents, why it filed Complaint on 02 September 2016 before
Industrial Court for payment of medical and traveling allowances to
Petitioner is beyond comprehension. Apparently, the Complaint was
deliberately lodged to create picture as Union as well as Petitioner were
unaware of termination letter dated 07 July 2016. The entire conduct of
the Petitioner and the Union is thus untrustworthy.
19. It has come on evidence that Petitioner did not supply his
correct residential address to the Respondent-Management and had
given address of his Union. He admitted that he was residing at Room
No. 61, Tambawala Building, Dongri, Jail Road, Umerkhadi, Mumbai
since 2009 and that Mr. Chandrakant Patil, another employee was also
residing in the same building. It is Respondent-Company's contention
that the termination letter alongwith cheque were sent by ordinary post
to the Petitioner at the address provided by Shri. Chandrakant Patil. It
is observed about that Petitioner had acquired knowledge about his
termination and accordingly the Union had address letter dated 14 July
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2016 to that effect. In my view therefore, the plea of non-service of
termination letter adopted by Petitioner is factually incorrect.
20. Alongwith termination letter dated 14 July 2016,
Respondent-Company offered one month notice pay as well as
retrenchment compensation (total amount of Rs.3,07,904/-) to
Petitioner. Thus, provisions of Section 25-F (a) and (b) are fully
complied with. So far as the provisions of Section 25-F(c) are
concerned, there is debate between the parties about mandatory
requirement of service of notice on the appropriate government. Mr.
Cama has relied upon Judgment of the Apex Court in Raj Kumar
V/s. Director of Education & Ors., 2016 II CLR 353 in support of
his contention that service of notice under Section 25-F(c) is
mandatory. As against this Ms. Yajurvedi has relied upon Judgment of
this Court in Bajaj Auto Limited, Akurdi, Pune V/s. Ashok
Dnyanoba Dhumal & Anr., 2006 I CLP 441 in support of her
contention that service of such notice is not mandatory requirement. In
Raj Kumar the Apex Court held in paragraph Nos.23, 24, 25 and 26
as under :
23. We are unable to agree with the reasoning adopted by the
Tribunal as well as the High Court in the instant case. Admittedly,
the notice under S.25F(c) of the ID Act has not been served upon
the Delhi State Government. In support of the justification for not
sending notice to the State Government reliance has been placed
upon the decision of this Court in the case of Bombay Journalists
(supra). This decision was rendered in the year 1963 and it was
held in the said case that the provisions of S.25F(c) of the I.D. Act
is directory and not mandatory in nature. What has been ignored
by the Tribunal as well as the High Court is that subsequently, the
Parliament enacted the Industrial Disputes (Amendment) Act,
1964. S.25F(c) of the I.D. Act was amended to include the words:
"or such authority as may be specified by the appropriate
Government notification in the Official Gazette" by The
statement of objects and reasons provides:
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"Opportunity has been availed of to propose a few other
essential amendments which are mainly of a formal or
clarificatory nature"
24. Nothing was done on part of the legislature to indicate that
it intended Section 25F(c) of the I.D. Act to be a directory
provision, when the other two sub- sections of the same section are
mandatory in nature. The amendment was enacted which seeks to
make it administratively easier for notice to be served on any other
authority as specified.
25. Further, even the decision in the case of Bombay
Journalists (supra) does not come to the rescue of the respondents.
On the issue of interpretation of Section 25F(c) of the ID Act, it
was held as under:
"The hardship resulting from retrenchment has been
partially redressed by these two clauses, and so, there is
every justification for making them conditions precedent.
The same cannot be said about the requirement as to clause
(c). Clause (c) is not intended to protect the interests of the
workman as such. It is only intended to give intimation to
the appropriate Government about the retrenchment, and
that only helps the Government to keep itself informed
about the conditions of employment in the different
industries within its region. There does not appear to be
present any compelling consideration which would justify
the making of the provision prescribed by clause (c) a
condition precedent as in the case of clauses (a) & (b).
Therefore, having regard to the object which is intended to
be achieved by clauses (a) & (b) as distinguished from the
object which clause (c) has in mind, it would not be
unreasonable to hold that clause (c), unlike clauses (a) &
(b), is not a condition precedent."
(emphasis laid by this Court)
Thus, this Court read the ID Act and the relevant Rules
thereunder together and arrived at the conclusion that Section
25F(c) is not a condition precedent for retrenchment. By no
stretch of imagination can this decision be said to have held that
there is no need for industries to comply with this condition at all.
At the most, it can be held that Section 25F(c) is a condition
subsequent, but is still a mandatory condition required to be
fulfilled by the employers before the order of retrenchment of the
workman is passed. This Court in the case of Mackinnon
Mackenzie & Company Ltd. v. Mackinnon Employees Union
(2015) 4 SCC 544 held as under:
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"Further, with regard to the provision of Section 25F
Clause (c), the Appellant- Company has not been able to
produce cogent evidence that notice in the prescribed
manner has been served by it to the State Government prior
to the retrenchment of the concerned workmen. Therefore,
we have to hold that the Appellant-Company has not
complied with the conditions precedent to retren-chment as
per Section 25F Clauses (a) and (c) of the I.D. Act which
are mandatory in law."
In the instant case, the relevant rules are the Industrial Disputes
(Central) Rules, 1957. Rule 76 of the said Rules reads as under:
"76. Notice of retrenchment.- If any employer desires to
retrench any workman employed in his industrial
establishment who has been in continuous service for not
less than one year under him (hereinafter referred to as
'workman' in this rule and in rules 77 and 78), he shall give
notice of such retrenchment as in Form P to the Central
Government, the Regional Labour Commissioner (Central)
and Assistant Labour Commissioner (Central) and the
Employment Exchange concerned and such notice shall be
served on that Government, the Regional Labour
Commissioner (Central), the Assistant Labour
Commissioner (Central), and the Employment Exchange
concerned by registered post in the following manner:-
(a) where notice is given to the workman, notice of
retrenchment shall be sent within three days from the date
on which notice is given to the workman;
(emphasis laid by this Court)
Rule 76(a) clearly mandates that the notice has to be sent to the
appropriate authorities within three days from the date on which
notice is served on the workman. In the instant case, the notice of
retrenchment was served on the appellant on 7.1.2003. No evidence
has been produced on behalf of the respondents to show that notice
of the retrenchment has been sent to the appropriate authority
even till date.
26. That being the case, it is clear that in the instant case, the
mandatory conditions of Section 25F of the I.D. Act to retrench a
workman have not been complied with. The notice of
retrenchment dated 7.1.2003 and the order of retrenchment dated
25.7.2003 are liable to be set aside and accordingly set aside.
21. Since Raj Kumar (supra) being Judgment of Apex Court
rendered in the year 2016, same would prevail other Judgment of this
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Court in Bajaj Auto Limited rendered in the year 2006. In Raj
Kumar, Apex Court held that service of notice on the appropriate
government under Section 25-F(c) is not directory under Industrial
Disputes (Amendment) Act 1964 and that the same is mandatory. In
the present case, admittedly notice to the appropriate government was
not issued under Section 25-F(c) of the Industrial Disputes Act.
22. So far as the issue of violation of Section 25G of the I.D.Act
is concerned, in my view mere production of list of workers obtained
through Right to Information Act, 2005 from the office of Employees
Provident Fund Organization would not suffice to demonstrate that
any fresh worker was employed after termination of Petitioner in the
category in which the Petitioner was working. Section 25G of the I. D.
Act reads thus:
25-G. Procedure for retrenchment. Where any workman in an
industrial establishment, who is a citizen of India, is to be
retrenched and he belongs to a particular category of workmen in
that establishment, in the absence of any agreement between the
employer and the workman in this behalf, the employer shall
ordinarily retrench the workman who was the last person to be
employed in that category, unless for reasons to be recorded the
employer retrenches any other workman
23. Thus, to prove violation of provisions of Section 25G, it
was incumbent for the Petitioner to prove that any junior worker,
belonging to the category in which he was working, was either retained
in service or that a fresh employee was employed in his place. After
going through the list of workers produced at page No.47 and 48 of the
petition, it is difficult to ascertain whether any worker was retained or
employed fresh in the category in which Petitioner was working. The
Respondent management has come with a specific case that Petitioner
was performing work of delivery of Export Promotion copies to the
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customers and that as per circular dated 23 November 2016 issued by
Customers Department, the system of taking out print of EP was dis-
continued and therefore there was no question of services thereof on its
customers. Respondent Company thus successfully proved before the
Labour Court that Petitioner was the only workman doing the
particular nature of work. In fact, he admitted in his cross-examination
that he was sitting idle from 2014 to 2016. He further admitted that
there was no other employee other than him, who was doing the work
which he used to do. Thus, admissions given by Petitioner proved
beyond any iota of doubt that no other worker than the Petitioner was
either retained or recruited afresh after his termination. Since the
Petitioner was the only worker in the particular category, there was no
question of maintaining any seniority list.
24. After considering overall aspects of the case, I am of the
view that Petitioner has succeeded only in technical plea of failure to
give notice under Section 25F(c) to the Government while effecting his
retrenchment. I am not inclined to set aside the order of retrenchment
or order Petitioner's reinstalment for violation of Section 25F(c) of the
ID Act. for every violation of Section 25F of ID Act, reinstatement with
backwages is not the answer. In State of Uttarakhand v. Raj
Kumar, (2019) 14 SCC 353 the Apex Court has held as under:
9. In our opinion, the case at hand is covered by the two decisions of
this Court rendered in BSNL v. Bhurumal [BSNL v. Bhurumal, (2014) 7
SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v.
Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal
Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276] .
10. It is apposite to reproduce what this Court has held in BSNL
[BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC
p. 189, paras 33-35)
"33. It is clear from the reading of the aforesaid judgments that the
ordinary principle of grant of reinstatement with full back wages,
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when the termination is found to be illegal is not applied mechani-
cally in all cases. While that may be a position where services of a
regular/permanent workman are terminated illegally and/or mala
fide and/or by way of victimisation, unfair labour practice, etc.
However, when it comes to the case of termination of a daily-wage
worker and where the termination is found illegal because of a pro-
cedural defect, namely, in violation of Section 25-F of the Industrial
Disputes Act, this Court is consistent in taking the view that in
such cases reinstatement with back wages is not automatic and in-
stead the workman should be given monetary compensation which
will meet the ends of justice. Rationale for shifting in this direction
is obvious.
34. The reasons for denying the relief of reinstatement in such cases
are obvious. It is trite law that when the termination is found to be
illegal because of non-payment of retrenchment compensation and
notice pay as mandatorily required under Section 25-F of the In-
dustrial Disputes Act, even after reinstatement, it is always open to
the management to terminate the services of that employee by pay-
ing him the retrenchment compensation. Since such a workman
was working on daily-wage basis and even after he is reinstated, he
has no right to seek regularisation [see State of Karnataka v.
Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation
and he has no right to continue even as a daily-wage worker, no
useful purpose is going to be served in reinstating such a workman
and he can be given monetary compensation by the Court itself
inasmuch as if he is terminated again after reinstatement, he would
receive monetary compensation only in the form of retrenchment
compensation and notice pay. In such a situation, giving the relief
of reinstatement, that too after a long gap, would not serve any
purpose.
35. We would, however, like to add a caveat here. There may be
cases where termination of a daily-wage worker is found to be ille-
gal on the ground that it was resorted to as unfair labour practice
or in violation of the principle of last come first go viz. while re-
trenching such a worker daily wage juniors to him were retained.
There may also be a situation that persons junior to him were regu-
larised under some policy but the workman concerned terminated.
In such circumstances, the terminated worker should not be denied
reinstatement unless there are some other weighty reasons for
adopting the course of grant of compensation instead of reinstate-
ment. In such cases, reinstatement should be the rule and only in
exceptional cases for the reasons stated to be in writing, such a re-
lief can be denied".
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25. The ratio in State of Uttarakhand Vs. Raj Kumar is
followed by the Apex Court in Ranbir Singh v. PWD, (2021) 14
SCC 815 in which it is held as under:
7. In the light of the state of the law, which we take note of, we notice certain
facts which are not in dispute. This is a case where it is found that, though
the appellant had worked for 240 days, appellant's service was terminated,
violating the mandatory provisions of Section 25-F of the Act. The authority
involved in this case, apparently, is a public authority. At the same time, it is
common case that the appellant was a daily wager and the appellant was not
a permanent employee. It is relevant to note that, in the award answering
Issue 1, which was, whether the termination of the appellant's service was
justified and in order, and if not, what was the amount of back wages he was
entitled to, it was found, inter alia, that the appellant could not adduce
convincing evidence to establish retention of junior workers. There is no
finding of unfair trade practice, as such. In such circumstances, we think that
the principle, which is enunciated by this Court, in the decision, which is
referred to in Raj Kumar [State of Uttarakhand v. Raj Kumar, (2019) 14
SCC 353 : (2020) 2 SCC (L&S) 258] , which we have referred to, would be
more appropriate to follow. In other words, we find that reinstatement
cannot be automatic, and the transgression of Section 25-F being
established, suitable compensation would be the appropriate remedy.
26. Petitioner has already been paid retrenchment
compensation and one month notice pay totaling Rs.3,07,904/- which
has been withdrawn by him from Labour Court. In my view additional
compensation of 2,00,000/- for technical violation of failure to give
notice to appropriate government under Section 25F(c) of the ID Act
would meet the ends of justice.
27. Petition accordingly partly succeeds and I proceed to pass
the following Order:
(i) Judgment and Order dated 04 July 2018 passed by the
First Labour Court at Mumbai in Complaint (ULP) No.203 of
2016 as well as Judgment and Order dated 30 April 2019 passed
by the Industrial Court, Mumbai in Revision Application (ULP)
No.98 of 2018 are modified to the extent that the Respondents
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Kishor WP 10073 of 2019.doc
shall pay to Petitioner compensation of Rs. 2,00,000/- over and
above the amount already paid to him.
(ii) The compensation of Rs. 2,00,000/- shall be paid to
Petitioner within 6 weeks, failing which the amount shall carry
interest @ Rs. 8% p.a..
28. With the above directions, Writ Petition is partly allowed.
Rule is made partly absolute. No costs.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU KAMBLE
KAMBLE Date:
2024.04.01
18:48:17 +0530
01 April 2024
